For the third time this Court is called upon to determine the appropriateness of a trial court ruling in this multidistrict civil antitrust litigation. See In re Corrugated Container Antitrust Litigation, 606 F.2d 319 (5th Cir. 1979) (appeal dismissed without published opinion), petition for cert. filed, 48 U.S.L.W. 3500 (U.S. Dec. 21, 1979) (No. 79-972) (Corrugated I ); In re Corrugated Container Antitrust Litigation, 611 F.2d 86 (5th Cir. 1980) (Corrugated II ). As in the other two circumstances, the district court decision and our consideration of the matter precedes trial of the litigation, the scope of which defendants appropriately characterize as "gargantuan." The fact that the parties have once more sought the involvement of this Court in the litigation further supports our prediction in Corrugated II that "(b) efore the litigation is completed, the case will undoubtedly present numerous opportunities for parties dissatisfied with some aspect of a court ruling to claim entitlement to appellate review." 611 F.2d at 89. The case, not yet tried and far from completion, has apparently already presented those "numerous opportunities." See also In re Int'l Bus. Machines Corp., No. 79-3070, slip op. 1409, 1413 n.2, (2d Cir. Feb. 25, 1980) (IBM ).

The present controversy arises out of the refusal of the district judge, upon motion, to disqualify himself from further participation in the litigation. In No. 79-3369 defendants seek review of the district court's determination on appeal; in No. 79-3653 they request this Court to exercise its power to issue a writ of mandamus. Guided by the principles we found controlling in Corrugated II, we dismiss the appeal for want of an appealable order. Further, we deny the request for a writ of mandamus. Alternatively, we hold that under applicable statutory and case law the district judge's refusal to disqualify himself was fully justified.1

In the present situation defendants-appellants urge, as they did in Corrugated II, that the district court decision of which they complain is an appealable final order under 28 U.S.C. § 1291 within the meaning of the doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949). Once again, their reliance on Cohen is misplaced.

To determine under the rule of Cohen the appealability of a district judge's denial of a motion for disqualification, little discussion beyond that in Corrugated II is necessary.2 Disqualification questions are fully reviewable on appeal from final judgment. Davis v. Board of School Comm'rs, 517 F.2d 1044, 1051 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96 S. Ct. 1685, 48 L. Ed. 2d 188 (1976); 13 C. Wright, A. Miller, and E. Cooper, Federal Practice and Procedure § 3553 at 384; see, e. g., Potashnick v. Port City Constr. Co., 609 F.2d 1101, 1107-15 (5th Cir. 1980); United States v. Clark, 605 F.2d 939, 941-42 (5th Cir. 1979); Whitehurst v. Wright, 592 F.2d 834, 837-38 (5th Cir. 1979); King v. United States, 576 F.2d 432, 436-37 (2d Cir.), cert. denied, 439 U.S. 850, 99 S. Ct. 155 (1978); United States ex rel. Weinberger v. Equifax, Inc., 557 F.2d 456, 463-64 (5th Cir. 1977); United States v. Partin, 552 F.2d 621, 636-40 (5th Cir.), cert. denied, 434 U.S. 903, 98 S. Ct. 298, 54 L. Ed. 2d 189 (1977). Precisely because disqualification issues are reviewable following entry of judgment, as a threshold matter the Cohen doctrine is unavailing. In Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S. Ct. 2454, 2458, 57 L. Ed. 2d 351 (1978), the Supreme Court explained that, as a prerequisite to appealability under the Cohen rule, "the order must . . . be effectively unreviewable on appeal from a final judgment." See Corrugated II, supra, 611 F.2d at 88; Ruiz v. Estelle, 609 F.2d 118, 119 (5th Cir. 1980).3

In addition to their claim that the decision of the district court is immediately appealable under the Cohen doctrine, defendants "out of an abundance of caution" also petition for a writ of mandamus. The contention does not merit extended discussion. We refuse issuance of the writ.4

As this Court recently stated in United States v. Denson, 603 F.2d 1143 (5th Cir. 1979) (en banc), "Countless expressions can be found in the jurisprudence to support the black-letter proposition that mandamus is an extraordinary remedy for extraordinary causes." 603 F.2d at 1146. "(O)nly exceptional circumstances amounting to a judicial 'usurpation of power' will justify this extraordinary remedy." Will v. United States, 389 U.S. 90, 95, 88 S. Ct. 269, 273, 19 L. Ed. 2d 305 (1967). Moreover, "(t)he Supreme Court has repeatedly stated . . . that issuance of a writ of mandamus lies in large part within the discretion of the court." United States v. Denson, supra, 603 F.2d at 1146; see Helstoski v. Meanor, 442 U.S. 500, 504, 99 S. Ct. 2445, 2447, 61 L. Ed. 2d 30, 35 (1979) (quoting Kerr v. United States District Court, 426 U.S. 394, 403, 96 S. Ct. 2119, 2124, 48 L. Ed. 2d 725 (1976)). In the present case we decline to exercise our discretion to issue the writ and we do so without need of a comprehensive examination of the record.

For nearly one hundred years, it has been clear that " '(t)he general principle which governs proceedings by mandamus is, that whatever can be done without the employment of that extraordinary writ, may not be done with it.' " Helstoski v. Meanor, supra, 442 U.S. at 505, 99 S. Ct. at 2448, 61 L.Ed.2d at 35 (quoting Ex parte Rowland, 104 U.S. 604, 617, 26 L. Ed. 861 (1882) (emphasis added by the court)). "(A)s a general rule 'appellate review should be postponed . . . until after final judgment . . ..' Will v. United States, supra, 389 U.S. at 96 (88 S.Ct. at ---); Parr v. United States, 351 U.S. 513, 520-21 (76 S. Ct. 912, 917, 100 L. Ed. 1377) (1956). . . . (T)he party seeking issuance of the writ (of mandamus must) have no other adequate means to attain the relief he desires . . .." Kerr v. United States District Court, supra, 426 U.S. at 403, 96 S. Ct. at 2124. As discussed above, full review awaits these defendants upon appeal from final judgment.

On this ground alone we refuse to issue the writ. Additionally, however, we note that the writ of mandamus "is an order directing a public official . . . to perform a duty exacted by law," United States v. Denson, supra, 603 F.2d at 1146, and "will not issue to correct a duty that is to any degree debatable . . .." Id. at 1147 n.2. The party seeking the writ carries the burden of proving a "clear and indisputable" right to issuance of the writ. Kerr v. United States District Court, supra, 426 U.S. at 403, 96 S. Ct. at 2124; Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384, 74 S. Ct. 145, 148, 98 L. Ed. 106 (1953). As will become clear in the discussion that follows, defendants manifestly cannot demonstrate a "clear and indisputable" right to issuance of the writ. The legal duty of the district judge to disqualify himself is not merely debatable it is nonexistent.

Mead, Westvaco, Georgia-Pacific, and Crown Zellerbach, appellants-petitioners here, as manufacturers of corrugated containers and corrugated sheets, are defendants in one or more of forty-four class actions and eleven non-class civil actions consolidated for pretrial proceedings6 in the United States District Court for the Southern District of Texas and assigned to the Honorable John V. Singleton, Jr., now chief judge of that district.7 These four parties are among the few remaining that have not settled out of the litigation.

Extensive scrutiny of the corrugated container industry gave rise to the massive litigation of which a relatively narrow controversy is herein considered. A two-year grand jury investigation of the industry resulted in criminal felony indictments against nine individuals and nine corporations, including Mead, and misdemeanor indictments against an additional seventeen individuals and five corporations. Defendants Westvaco, Georgia-Pacific, and Crown Zellerbach were not indicted. Judge Singleton, after having stayed further proceedings in the civil litigation, presided over the criminal trials of those indicted defendants who elected to stand trial. A jury acquitted the criminal defendants of all charges on April 27, 1979. On August 30, 1979, Mead filed an affidavit of bias and motion requesting Judge Singleton to recuse himself from further presiding over the civil litigation. The motion was denied.

Defendants challenge Judge Singleton's decision and ask this Court to find Judge Singleton disqualified under the applicable legal standards.8 First, they contend that because of evidentiary findings made in the criminal trial disqualification requirements have been met. Second, they urge that certain out-of-court statements made by Judge Singleton following the criminal trial were of such a nature to require his disqualification. Third, defendants maintain that alleged out-of-court statements of Judge Singleton's law clerk and an interview with an industry magazine that she gave reflect on Judge Singleton in a manner that requires his disqualification. Each of the contentions fails.9 Judge Singleton most appropriately refused to recuse himself.

Defendants' main contention that Judge Singleton is disqualified from presiding further in the civil litigation rests upon his making of evidentiary rulings during the course of the criminal trial in which Mead was involved. Pursuant to responsibilities imposed upon him by United States v. James, 576 F.2d 1121 (5th Cir. 1978), modified, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S. Ct. 2836, 61 L. Ed. 2d 283 (1979), Judge Singleton made factual findings as a predicate to the jury's evidentiary consideration of out-of-court statements made by an alleged coconspirator.10 Defendants urge that, because Judge Singleton made the findings,11 he is disqualified from presiding in the future over proceedings in the civil litigation. We disagree.

No court has yet faced the precise issue presented here the effect of James rulings upon the legal propriety of a judge presiding over subsequent related proceedings. The issue, however, is not generically novel. We believe this situation not unlike countless others in which district judges become thoroughly immersed in all aspects of a case, rule on the admissibility of evidence and on its sufficiency to permit a jury to determine the litigation's outcome, and even form conclusions on ultimate facts involved and then later preside at trials involving the same facts and/or the same parties. As long as judges are not disqualified under these circumstances and overwhelming authority indicates that they are not12 we have no difficulty in holding that Judge Singleton's James rulings in the criminal trial do not require his disqualification.

It is established beyond dispute that under Section 14413 only allegations of "personal" bias of a judge are sufficient to require disqualification. See United States v. Grinnell Corp., 384 U.S. 563, 582-83, 86 S. Ct. 1698, 1709-10, 16 L. Ed. 2d 778 (1966); Berger v. United States, 255 U.S. 22, 32-33, 41 S. Ct. 230, 232-233, 65 L. Ed. 481 (1921); United States v. Serrano, 607 F.2d 1145, 1150 (5th Cir. 1979). Moreover, for a bias to be personal, and therefore disqualifying, it "must stem from an extra-judicial source . . .." United States v. Grinnell Corp., supra, 384 U.S. at 583, 86 S. Ct. at 1710; Berger v. United States, supra, 255 U.S. at 31, 41 S. Ct. at 232; IBM, supra, slip op. at 1417; see United States v. Serrano, supra, 607 F.2d at 1150; United States v. Clark, supra, 605 F.2d at 942; Davis v. Board of School Comm'rs, supra, 517 F.2d at 1051. In the present case there can be no question but that the James rulings in the criminal case were judicial in nature. While defendants suggest that the rulings were not correct,14 they do not hint that the rulings were in the slightest degree based upon anything other than evidence appropriately before Judge Singleton in a situation as fully judicial as any imaginable. Rather, defendants rely on the 1974 amendment to Section 455. Section 455(a)15 now requires for disqualification only that a judge's "impartiality might reasonably be questioned." Defendants urge that, because Judge Singleton made the James rulings and because Section 455(a) does not refer to personal, extrajudicial bias, that provision requires Judge Singleton's disqualification. Defendants, however, misunderstand Section 455(a).

This Court in Davis v. Board of School Comm'rs, supra, specifically held that even after the 1974 amendment to Section 455 the disqualification statutes remain to guard against personal, extrajudicial bias or the appearance of partiality arising out of such bias.

Construing §§ 144 and 455 in pari materia we believe that the test is the same under both. We thus hold that an appellate court, in passing on questions of disqualification of the type here presented, should determine the disqualification on the basis of conduct which shows bias or prejudice or lack of impartiality . . . (,) conduct extra-judicial in nature as distinguished from conduct within a judicial context. This means that we give §§ 144 and 455 the same meaning legally for these purposes, whether for purposes of bias and prejudice or when the impartiality of the judge might reasonably be questioned.

517 F.2d at 1052 (emphasis added).16 Since Davis, other courts have enunciated the rule that Sections 144 and 455(a) reach the same sort of conduct. IBM, supra, slip op. at 1421; United States v. Olander, supra, 584 F.2d at 882; United States v. Haldeman, 181 U.S.App.D.C. 254, 356 n. 297, 559 F.2d 31, 133 n. 297 (D.C.Cir. 1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2641, 53 L. Ed. 2d 250 (1977); Hawaii-Pacific Venture Capital Corp. v. Rothbard, 437 F. Supp. 230, 233 (D.Hawaii), appeal dismissed, 564 F.2d 1343, 1347 (9th Cir. 1977); see King v. United States, supra, 576 F.2d at 437. Moreover, in numerous cases since the enactment of Section 455(a) courts have held that familiarity with defendants and/or the facts of a case that arises from earlier participation in judicial proceedings is not sufficient to disqualify a judge from presiding at a later trial.17

We have long disclaimed any notion of " 'no-deposit/no-return judges, disposable after one use' ". United States v. Partin, supra, 552 F.2d at 637 n. 20 (quoting United States v. Harris, 458 F.2d 670, 678 (5th Cir.), cert. denied, 409 U.S. 888, 93 S. Ct. 195, 34 L. Ed. 2d 145 (1972)); see United States v. Archbold-Newball, supra, 554 F.2d at 682. We do so again. Judge Singleton's James rulings in the criminal trial are not sufficient to cause a reasonable third party to question his impartiality in the civil litigation. Nothing to which defendants point suggests anything but a "reasonable likelihood that the cause will be tried with the impartiality that litigants have a right to expect in a United States district court." United States v. Ritter, supra, 540 F.2d at 464.18

The second ground on which defendants urge the disqualification of Judge Singleton involves a conversation between him and an attorney for one of the acquitted criminal defendants shortly after completion of the criminal trial. The allegations concerning the conversation are contained in affidavits by two attorneys for Mead.19 In essence, they state that, on the day after the jury in the criminal trial acquitted the defendants, Judge Singleton played golf with William Maddux, an attorney for one of the misdemeanor defendants. On that date, according to the affidavits, Judge Singleton stated that the government had mishandled the prosecution and had left incriminating evidence unused in the document depository. Moreover, Judge Singleton was alleged to have stated that the civil plaintiffs would not make the mistakes that the government had made and that the civil defendants would not have paid $300 million to settle the lawsuit unless they were guilty.

As we are required to do, we accept as true the allegations contained in the affidavits. Berger v. United States, supra, 255 U.S. at 36, 41 S. Ct. at 234; United States v. Serrano, supra, 607 F.2d at 1150; Davis v. Board of School Comm'rs, supra, 517 F.2d at 1051; 13 Wright, Miller & Cooper, supra, § 3551 at 381. The allegations, however, are insufficient to require Judge Singleton's disqualification.

The affidavits do not suggest any personal, extrajudicial bias; nor does a question of Judge Singleton's impartiality arise because of the danger of such bias. Taken as alleged by the defendants, all of the statements reflect comments on the evidence and, at most, opinions developed through Judge Singleton's participation in the case. As in United States v. Haldeman, supra, "while these thoughts were voiced in an extra-judicial setting . . . the informational source upon which they drew the judge's experience as a judge was distinctly judicial." 181 U.S.App.D.C. at 359, 559 F.2d at 136. Such statements are not improper and do not require Judge Singleton's disqualification. See United States v. Clark, supra, 605 F.2d at 942; United States v. Haldeman, supra, 181 U.S.App.D.C. at 359, 559 F.2d at 136; United States v. Montecalvo, supra, 545 F.2d at 685; United States v. Bernstein, supra, 533 F.2d at 785.

Defendants' final contention that Judge Singleton is disqualified from presiding further in the litigation is derivative in nature. Defendants assert that the conduct of Judge Singleton's law clerk necessitates his disqualification.20 Since this Court has held that ordinarily a judge's bias, to be disqualifying, must run to a party rather than merely to the attorney, Davis v. Board of School Comm'rs, supra, 517 F.2d at 1050-51, we think it fitting to restrict those situations in which the bias of a law clerk will work to disqualify the clerk's employer. Clearly, a law clerk's views cannot be attributed to the judge for whom the clerk works. Moreover, even if law clerks' opinions accurately reflected the views of their employers, we could not hold Judge Singleton disqualified in the present case because of actions and statements attributed to his law clerk.

Defendants allege that the law clerk voiced her opinions on the resolution of the criminal case to one of Mead's lawyers. Setting aside questions, of which we have many, of the propriety of such comments, they are clearly based upon her observations made in connection with the case. If Judge Singleton cannot be found disqualified for opinions he developed in the course of the litigation, it is difficult to comprehend how he could be found disqualified because of the opinions his law clerk developed in a judicial setting.

The law clerk also allegedly gave a press interview and, of course, defendants also urge that as a ground for the disqualification. In giving an interview with the press, the clerk most likely breached duties imposed upon her by Canons 3 A(6),21 see United States v. Haldeman, supra, 181 U.S.App.D.C. at 357, 559 F.2d at 134, and 3 B(2),22 of the Code of Judicial Conduct for United States Judges. Nevertheless, the statements attributed to the clerk constitute no basis for disqualification of Judge Singleton. Indeed the statements express no opinion whatsoever. Rather, they merely state obvious fact: if fewer members of the class elect to participate in the settlement, each claimant's share will increase. There is no basis on which Judge Singleton should be disqualified.

No. 79-3369 APPEAL DISMISSED.

No. 79-3653 WRIT OF MANDAMUS DENIED.